Judge: Utah must honor same-sex marriages performed during 17-day window

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A federal judge ruled Monday that Utah must recognize and imbue all same-sex marriages performed in the state with the same rights and privileges afforded to married opposite-sex couples.

Chief among those rights, the judge noted, are the right to property, inheritance, legal protection and "the custody and care of children"  an issue at the center of a state challenge to three state court judge's decisions

with respect to adoptions">to grant adoptions to married gay couples.

U.S. District Judge Dale A. Kimball became the first federal judge ever to order a state to acknowledge and honor all gay and lesbian marriages performed after the state's ban on same-sex unions was overturned.

About 1,300 same-sex couples were granted marriage licenses in Utah during a 17-day window that extended from the day U.S. District Judge Robert J. Shelby overturned Utah's voter-approved ban on same-sex marriages to the day the U.S. Supreme Court issued a stay, halting all such weddings.

In that time, more than 1,000 of those marriages were solemnized in a formal ceremony, making them legal and binding under Utah law, Kimball ruled.

"Although the state has a general interest in representing the wishes of its voters, that interest does not outweigh the harms [same-sex couples] face by having their constitutional rights violated," the judge wrote. "Governor Gary Herbert and Attorney General Sean Reyes shall immediately recognize the marriages by same-sex couples entered pursuant to Utah marriage licenses issued and solemnized between December 20, 2013, and January 6, 2014, and afford these same-sex marriages all the protections benefits and responsibilities given to all marriages under Utah law."

Kimball's decision will not take effect for 21 days, giving the state time to file an appeal if it so chooses.

As of Monday evening, the governor and attorney general seemed undecided as to Utah's next course of action.

"The Attorney General's Office has not made an immediate determination about whether it will appeal Judge Kimball's ruling," spokeswoman Missy Larsen wrote in a statement from the AG. "We are currently assessing the legal impact of today's decision and will respond within the 21-day allotted time period."

Gov. Gary Herbert, who in the aftermath of Shelby's ruling ordered county clerks to adhere to the federal judge's decree and issue same-sex couples marriage licenses, questioned how Kimball's ruling may impact other cases.

"We are currently reviewing the decision issued today by U.S. District Court Judge Dale Kimball," wrote gubernatorial spokesman Marty Carpenter. "We are evaluating the options and how this decision may relate to the status of other pending same-sex marriage cases."

Kimball declared denying married same-sex couples the same rights afforded to their opposite-sex counterparts from the moment their unions are solemnized is an unjustifiable harm that violates their right to due process as guaranteed by the U.S. Constitution.

The state's efforts to prevent more same-sex marriages in the future  by challenging Shelby's ruling at the 10th Circuit Court of Appeals, which is expected to rule any day  does not impact the marriages performed when the law allowed such unions, Kimball wrote.

"The state has placed [same-sex couples] and their families in a state of legal limbo with respect to adoptions, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance, and many other property and fundamental rights associated with marriage," the judge ruled. "These legal uncertainties and lost rights cause harm each day that the marriage is not recognized."

Should Kimball's ruling stand, all couples married during Utah's 17-day window would have to remain legally recognized by Utah law regardless of how the 10th Circuit  or, eventually, the U.S. Supreme Court  rules on whether states have the right to ban such unions.

That's was the outcome four plaintiff couples and the American Civil Liberties Union had hoped for when they filed the lawsuit earlier this year.

"We believe Shelby is right, that state bans on same-sex marriages are unconstitutional," said John MejÃ­a, legal director for the ACLU of Utah. "But what's comforting about the ruling is no matter what happens with other cases, these marriages will be recognized."

The comfort only goes so far for plaintiffs Matthew Barraza and Tony Milner, who are raising their 5-year-old son together.

Barraza and Milner are one of several couples whose adoptions remain unresolved after the Utah Supreme Court halted all movement in same-sex adoptions last week until the justices can determine whether the adoptions, granted by three state judges, were legally issued.

Under Utah law, adoption is one of a slew of rights and privileges afforded to married couples. If Kimball's order stands, experts said, it will likely heavily impact the state court's decision on whether same-sex couples can be allowed the right to adopt.

"They'd be sort of grasping at straws to appeal, but considering some of their actions in other cases, I think we may be seeing [an appeal]," said lawyer Erik Strindberg, whose firm, Strindberg & Scholnick, acted as co-counsel with the ACLU in the marriage recognition lawsuit.

"I hope they don't," Strindberg said. "I hope the state sees that we have a very strong opinion here saying that these couples have vested rights under state laws and the U.S. Constitution. There are better ways to spend our tax money."

Judge Kimball, a Brigham Young University alumnus who was nominated to the federal bench in 1997 by President Bill Clinton, based a significant part of his ruling on a similar case that reached the California Supreme Court in 2008 and answered the question of whether more than 18,000 same-sex California marriages would be nullified by Proposition 8, which banned same-sex unions in the state.

In that case, the state supreme court found that rights legally granted to citizens cannot retroactively be taken away when law changes.

The judge also cited a case more than 120 years old that asserted vested rights associated with marriage stand "independent of the change in the law" as a "fundamental principle of basic fairness."

The stay imposed by the U.S. Supreme Court on Jan. 6  halting any further marriages and reverting the state to its "status quo" of banning gay and lesbian unions  does not apply to the couples who were issued licenses by Utah county clerks, the judge wrote.

The state has argued that couples who rushed clerk offices in the wake of Shelby's landmark ruling acted "unreasonably;" the judge noted the state also adhered to Shelby's order by telling its clerks to comply.

"The state notified its county clerks that they were required to issue marriage licenses," he wrote. "The state now seems to be claiming that while it reasonably required its county clerks to act in response to the [same-sex marriage] decision, plaintiffs unreasonably acted on the same decision."

State Sen. Jim Dabakis, D-Salt Lake City, called on the attorney general to "stop spending millions of Utah tax dollars on wasteful, message lawsuits designed to degrade and hurt LGBT families all across Utah."

Dabakis, who is openly gay, was married to his partner in the 17-day window after Shelby's historic ruling.

"As the only member of the Utah Senate whose spouse is refused state health care benefits, resulting from Governor Herbert's order putting all legal, same-sex Utah marriages 'on hold,' I applaud Judge Kimball's decision," Dabakis wrote. "And I urge the governor to respect the rule of law and withdraw his 'hold' on the dozens of Utah state employees affected as well as the hundreds of other married Utah couples."

The Sutherland Institute, a conservative think tank, released the following statement calling Kimball's decision "disappointing" and "judicial overreaching."

"There's nothing in the United States Constitution that allows courts to mandate same-sex marriage on the states, but one judge was able to do just that by issuing a novel ruling and then forcing the state to put it into effect before the court of appeals could correct any legal errors in that decision," wrote Bill Duncan, the institute's director of its Center for Family and Society. "Our system is weaker when judicial gamesmanship is not kept in check."

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